Why Natural Law Is ‘Hopeless’

A couple of weeks ago, David Bentley Hart published a critique of natural law theory in First Things. Hart argued, in summary, that arguments based on natural law are coherent, but not very useful for persuading members of a pluralistic modern society. The reason is that they rest on metaphysical (or “supernatural”) presuppositions that many people find implausible or explicitly reject.

…Hart is attacking straw men and simply begging the question against them. It also becomes evident that his conclusion—that it is ‘hopeless’ to bring forth natural law arguments in the public square—doesn’t follow from his premises, and that even if it did, if he were consistent he would have to apply it to his own position no less than to natural law theory.

Part of Feser’s response consists in somewhat pedantic (dare I say “scholastic”?) fallacy hunting. The real issue emerges about halfway through the long essay:

…if all Hart means to assert is that natural law theorists suppose that the metaphysical commitments crucial to their position are uncontroversial, then he is attacking a straw man. No natural law theorist claims any such thing. What they claim is merely that, however controversial, their position can be defended via purely philosophical arguments and without resort to divine revelation. And if its being controversial makes it ‘hopeless’ as a contribution to the public square, then every controversial position is hopeless.

This statement raises two important questions, neither of which Feser addresses explicitly.

First, what does it mean to say that a controversial position can be “defended by purely philosophical arguments”? Is Feser claiming that natural law cannot be conclusively refuted? If so, he’s probably right. But this means only that natural law is logically possible. Other and very different moral theories can boast the same.

Or is Feser making a stronger claim: that the metaphysical foundations of natural law theory can be demonstrated such that any rational and sufficiently attentive person would be compelled to accept them? Perhaps so: in The Last Superstition, Feser’s defends Aquinas’s fifth proof of the existence of God as “airtight.” Yet the history of philosophy since Kant indicates that metaphysical demonstrations simply do not have this compulsory authority. Provided, that is, that we don’t define rationality and attentiveness tautologically as acceptance of such arguments.

Which brings us to the second question. Does the conclusion that natural law, like other moral theories, rests on controversial and perhaps indemonstrable metaphysical commitments render it “‘hopeless'” as a contribution to the public square”? That depends what we hope to achieve in public debate on moral questions.

If the answer is consensus, then lasciate ogni speranza, voi ch’entrate. Anyone who expects to convince all people who meet a reasonably inclusive standard of rationality that abortion is wrong, for example, is deluding himself. The same goes for anyone who might wish to establish consensus that abortion is morally permissible. In Political Liberalism, John Rawls describes the inevitability of moral disagreement among equally thoughtful, well-informed people as the “burdens of judgement.” Although there’s much I disagree with in Rawls’ swork, the placement of the burdens of judgement at the center of public discourse is among his strongest moves.

Fortunately, consensus is not the only good produced by public discussion. Participants can also clarify the premises and implications of their own intuitions, learn where others see things differently, and seek unexpected areas of agreement. In short, they can learn to muddle through: agreeing where they can and tolerating when they must. And we have a procedure for mediating disputes on issues that require public action: voting. In a democracy, you don’t have to convince everyone that you’re right—only a majority.

Muddling through moral controversies by means of tentative discussion, instrumental alliances, temporary compromises, and democratic procedures is not as inspiring as the aspiration to achieve thick normative consensus. In the real world, however, it’s probably the best that we can do. Although I am unconvinced by natural law arguments, I am glad that people make them. Yet I’m pretty sure that my skepticism has other causes than stupidity or ignorance.

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21 Responses to Why Natural Law Is ‘Hopeless’

“Reasonably inclusive standard of rationality”. That is precisely it, yet on Abortion, reason always works for the reasonable. Those who want to keep it end up with something like: I want sex and contraceptives fail, but I don’t want a baby when they do. Or worse, that they don’t accept reason itself. The latter is like taking up 5 items priced at $1 each and handing the cashier two $2 bills and explaining I’m a Matheial relativist so for me 2+2=5 and you can’t impose your rules.

C. S. Lewis in the Abolition of Man showed how any such is self-refuting. The Tao is both complete and closed – by closed I mean it has all the rules of and how to reason, what the laws are and how justice works.

Lewis simply points out that as soon as you leave the Tao, there is no morality, authority, or even reason. But inside is the old stuffy morality of republican Rome, the Torah, Confucius, Christianity, and even hunter gatherer tribes in jungles today.

But no part of the sexual revolution – including divorce and contraception – is permissible. Nor is feminism. All of these begin by rejecting natural law and reason as being too restrictive. The same way you cannot convince someone who rejects arithmetic that 2+2 doesn’t equal 5. “4” is merely my answer, my opinion, and I can teach it to my kids if I homeschool, but don’t impose some old traditional western understanding.

You cannot translate objective morality into a form that a person who is pointing and saying “see the pretty unicorns” can understand. You first must get their minds back into this universe but that is a rescue mission across the Styx and the gates of hell. It requires a revival, great awakening, and/or exorcism, not reason.

What makes natural law totally useless in contemporary life is not whether it is true or not. It does not work because any argument it can make will run up against, “I want to do X. I am going to do X and you do not have the power to stop me.”

In an Age of Force, where power is all that matters, reason is a waste of time.

“Natural law” does not do any work as a premise in an argument for a particular political position, except for adding rhetorical emphasis. Similarly, the claim that God created the cosmos doesn’t support any particular scientific theory. Natural law is metaphysics, not politics.

Lots of crazy ideas come from academia. most of they from the left are quickly rejected by socety. Natrual law comes from the right. But it has no application in everyday life. Except as an excuse to reject homosexuality.
Some give me a rational use for natural law that does not include gay people? There is no basis in nature for man’s morality. None! There is no Murder, No rape. cannibalism is normal for many species. Lions are polyimist. Bees are polyandry. Alpha male can kill a smaller male and take his mate. Homosexuality is rare in nature but so is monogmy.

For natural law philosophy to work in political and social discourse, there needs to be a philosophical background in place that allows it. This depends upon a somewhat philosophically homogenous society. And more basically, it depends upon a widely shared agreement on first principles.

Lacking these, natural law arguments end up preaching to the choir.

Furthermore, at its most basic, natural law philosophies depend upon an agreed-upon adequation between the human intellect and the surrounding world. But when the human intellect’s abilities have been reduced to rational instrumentality, which has no possible access to what Plato or Aristotle would consider true knowledge, you can’t even begin to argue about such things; it’s pointless.

PDGM’s point is spot on, in my opinion. Natural law arguments suffer the same vulnerability to circular reasoning fallacies as doctrinal religious arguments: It always starts and ends with a belief in a Primary Source.

I wouldn’t presume to know how widespread the following might be, but from my POV natural law, doctrinal religious and even scientific foundational arguments for a philosophical assertion are essentially underwhelming. They have common principles to which I (and many others) subscribe on our own volition. Of what value is it to claim that those principles are generated and owned by the tradition or belief system behind the argument?

There was a multitude of people behind the car I own and drive. Neither individually nor as a group can they make the claim that they own my car. I usually disdain argument by analogy, but that one seems to work.

@tz
I don’t know if you can compare debates about human morality to a 2+2 math problem. In a simple math problem, all data is present and can be easily accessed. In debates about human nature, most of the data is missing and the rest is speculation. It is more like debating what 2+2X equals. You have one opinion of what X stands for and I have another.

Natural law theory relies on certain preambles to discussion — axioms, if you will. Such as:

“All men by nature desire to know.” (Aristotle, Metaphysics 1:1 — in the first line of the work).

Deny that, and yes, there is no grounds for natural law, because there is no grounds for nature at all. And whatever’s left of “knowledge” is pretty useless, since the notion of the theoretical intellect has been causally discarded (witnessed by the legitimate blurts of the “feeling” generation cited in comments above).

Aristotle and Thomas assume that there are some folks around who do desire to know the truth — and who affirm that there is a truth to know (Heraclitus and all that). For those who deny that (a contradiction, of course, but “Hey, so what??!! I feel good about myself!”) will believe anything.

Charles E. Rice of Notre Dame Law School has an excellent book, “Fifty Questions About The Natural Law,” very readable, from Ignatius Press. And regarding the natural law and its application to the age of politics as sexual liberation, see Mary Eberstadt, “Adam and Eve After the Pill,” also from Ignatius.

In the meantime, let’s all celebrate current wisdom: “What’s true for me might not be true for you.”

Are all based on natural law. That existence itself is founded upon principles of ontology and processes that govern their operation.

That is, in my view, the original understanding of natural law. What the Catholic theologians created has long since exceeded what natural law consists of. That nature herself has for if one looks rules and if we can uncover the rules, r come to knowledge of those rules — we can know truth.

Now for the metaphysicist to apply said rules, they have established a line of argument that is short at least for me is: the rules of nature are of God and if one looks at nature, one is bound to come to a conclusion that there is a God and that truth leads one to Christ, and to salavation. Since God himself is the creator men are but to seek out rules of reason, also from God and come to a conclusion of right thinking, even as to right and wrong morality. Acknowledging natures rules one concludes that god himself must also be oerderly and expacts man to act according to his order and that order is visible in nature.

The metaphysical leap is complex, among the scholarly and they have adopted the arguments as those of natural law — but divorced from that early Roman foundation — one wonders, if that is the case.

The metaphysical leap requires that others in said discussion of natural law minus the actual acknowledged nature, believes in a metaphysical being, who if not the creator, at the very least governs nature and hence natural laws. But if an individual considers the metaphysical existence of God — bunk — of that God operates in some manner other than so ascribed. It is unlikely that arguments so based will prevail.

“Provided, that is, that we don’t define rationality and attentiveness tautologically as acceptance of such arguments.”

…yet we do, and must, and are all doing so, all of the time, for instance when we sit down to discuss whether or not we are defining rationality and attentiveness tautologically as rationally attending to the rationality of our arguments…

We should be amused by the notion, repeated in the above comments, that Natural Law has no application in our lives, or that a specific body of law cannot be derived from Natural Law arguments, when, in fact, we live under a regime of Modern Natural Law, and when Natural Law premises are the fundamental norms of American law and modern law generally. A similar set of precepts – truly “precepts” – tend to govern all of our debates here, at least any that rise to the level of “debate” (according to a similarly “tautological” definition of debate). We do not recognize what we insist upon believing as derived from something called “Natural Law” because, ironically enough, our premises are we hold our premises to be more or less essential and irreducible, that is “natural,” as natural as air and light and our own skins. We hold these truths, as someone said, to be self-evident: natural.

Our famous founding sentence states, in effect, that to be considered rational and attentive, and therefore eligible for authentic citizenship, one must accept essential equality of “all men” and the inalienability of rights. The form does not just happen to be “tautological,” but is intended to be: It is the ground of truth itself for all intents and purposes for “us,” for the “we” in the process of being declared and constituted. It has the quality of revelation: It can perhaps be questioned or doubted, but to deny it would be to place oneself outside the community of believers in rational attention as constitutive of the citizenship-eligible individual. To deny this premise is to define oneself as irrational and inattentive, and therefore ineligible for political participation. It defines all other political premises as irrational or insensate: mad or unnatural, perverted, infirm, sub-human. At the same time it insists on the possibility and necessity of a state derived rationally from the self-evidently true.

Though the Declaration of Indepedence is not “law,” it both literally precedes and also refers to that which conceptually precedes American law, including an 18th Century metaphysics of the individual and a notion of the individual’s natural or naturalized (self-evident, inherent, essential, universal, necessary, etc.) freedom and property. We have found these an adequate basis for the constitution and elaboration of the state, but at times it becomes evident that this state of reason is not fully rationalizable, is not in fact entirely what it pretends to be. This problem was also well-known to the 18th Century theorists, and to those who preceded them. The contradiction between idealized politics of reason and the polity’s heterogeneous bases – origins elsewhere than or additional to pure reason – are realized in conflicts between subsidiary social-cultural norms or mores: the matters, like homosexuality, that everyone seems to want to discuss. In these contexts, what is “reasonable” turns out to be what we need to believe in order to maintain the state, including the necessary fiction of the final rationality of the state or its final susceptibility to reason. So people turn up with their contradictory interpretations of heterogeneous doctrines, such as the claim that what they happen to call “Natural Law” necessarily forbids gay marriage, against the claim that some other position grounded on something else not called “Natural Law,” but bound to the form of a Natural Law argument, requires that we allow gay marriage. For a moment, the subsidiary question threatens to become a literally “constitutional” crisis. The state does not, of course, rise or fall on the question of gay marriage, or seem likely to do so, but we nonetheless confront the form of the potential dissolution or self-destruction of the state, just as we can detect in the re-definition of the family and the transactionalization of all human relations the outline of an authentic challenge to the state based on mutually acceptable interpretation those supposedly self-evident precepts.

CK MacLeod: Not meaning to be glib — your post is excellent — but the rebuttal to your claims about the founding principles of the US is simple. The founders established an existential claim — that all power derives from the people — constructed erudite rhetoric for its logical support, and that they included emotional rhetoric as well need not denigrate the rest of it. Indeed, if you can find another foundational document in this category that abstains from emotional rhetoric, I’d like to see it.

Perhaps one must accept tautology as inevitable. I am prompted to rethink my own objections to it, if only to find value behind it.

A further rebuttal would go into detail concerning the motivations behind the concepts. That it is “self-evident that all men are created equal” has an explicit grounding in the prevailing social and political realities of the time and the previous centuries, where it was “self-evident” that some men were superior to all others. I would ask, rhetorically, how else the founders should have stated their rejection of the prior realities?

The conversation here—including that of others which Sam noted to start this thread—sort of boggles me: All this talk about natural law, both pro and con, and not one mention of the idea that no matter how “philosophically* grounded it or even any bit of it may be, nor even “scientifically” grounded, that, as arguments for its legitimacy/validity, none even approaches the idea of “the consent of the governed”?

I.e., that which Sam noted in the form of talking about democracy and voting.

Not to mention that it’s very difficult if not impossible for natural law enthusiasts to explain why, merely because nature allegedly shows X to be its rule, X *must* be our rule?

Especially given of what we know now, after Darwin and Mendel, about the true reality of nature’s X’s?

The idea of natural law seems to me to be a remnant from the time when nature was seen as this perfect and perfectly harmonious creation, corrupted really only by man’s original sin. (And pretending that God ensured that the lamb really felt no pain being torn apart by the lion.)

Knowing now of course the all-pervasive, constant, micro-to-macro, birth-to-death, absolutely ruthless competitive nature of life, who the hell would *want* to appeal to same to find lessons to inflict upon ourselves?

Indeed what laws *could* be derived from same other than … there are no laws?

A mere volcano shrugs and … every living thing that had lived on that huge island not just for centuries but for millions of years perhaps is incinerated. Or a mere flood or drought or mutation of some creature occurs so causing this or that change and … the predators on an entire continent wipe out great swaths of entire species without a blink.

One might well be better off deriving a palatable legal code from the video-game “Doom.”

A natural law, as opposed to a social law, is simply one derived from an observation, or at least a belief, about nature. A good example was the argument that ideas as not by nature property mad by Thomas Jefferson in his 1813 letter Isaac McPherson:

“If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.”

Jefferson recognized, however, that a right in social law to what we now call “intellectual property” might be justified on utilitarian grounds. Nevertheless the natural law regarding ideas is that they may not be owned.

What makes natural law so problematic in practice is that in most cases the argument is derived from nothing so simple as the nature of ideas but from human nature — which is complex, not well understood and varies a bit from one human individual to the next making generalization difficult.

The advantage of natural law, where it can be correctly determined, is that it is by definition realistic insofar as not being in conflict with nature. It is less prone than social law to fail due to unanticipated problems when tested against reality. Patent and copyright laws are a mess, full of arbitrary requirements and various controversies. That is the natural result of their artificial nature.

Franklin Evans: I don’t see the critique of the American system that I’m invoking as a denigration of the Founders’ work, just an acknowledgment of its possibly insuperable because inherent limitations. As for the first part of your comment, I don’t know that the Founders “established” the power of the people so much as they achieved a satisfactory enough articulation of it for an emergent modern sensibility. So, in another sense the “power of the people” established itself, or was found in a position to be established. I agree that why egalitarianism of a very particular type could be called self-evident for them is another interesting question, but the fact that it is still treated as such by “us,” in a way that defines (and constitutes) us to (or for) ourselves, seems to argue against the possibility of any truly impartial, or beneficial, inquiry into it.

the unworthy craftsman: “The older natural law arguments will be replaced by scientistic ones rooted in evolutionary psychology”

There will be attempts but continuing problem remains: ‘is’ ‘ought’. Evolutionary psychology may tells us how our feelings came to be. One may also be able to measure statistical distributions of behavior in a species. But it won’t tell us why we should prefer any particular cut-off. That’s a value judgement.

‘Natural law’ is a metaphysical construct and, I believe, actually orthogonal to science and explanations about the functioning of the universe. Conflating the two is part of the problem in these discussions (IMHO). You’re not going to get scientific proof about the morality of of particular situation. What percent of the population is gay or the mechanisms behind attraction do not inform us of what one should do or what is ‘right’ for everyone.

Of course, Feser’s response completely missed what Hart actually argued, so was a complete waste of time. Hart was criticizing a modern attempt to argue for Natural Law without resort to classical metaphysics, which is incoherent. Feser is a bit slow on the uptake.